Narayan Das v. Sarju Prasad — 1977 DIGILAW 181 (ALL)

JUDGMENT H.N. Agrawal, Member. - This is a second appeal against the judgment and decree dated February 18, 1972 passed by the Additional Commissioner, Jhansi in Appeal No. 173 of 1970 confirming the judgment dated December 18, 1970 passed by the Additional Sub-Divisional Officer and Assistant Collector First Class, Jhansi in Case No. 24 of 1969 under Section 209 of U.P. Zamindari Abolition and Land Reforms Act. 2. I have heard the learned counsels for the parties, and have gone through the record. 3. Sarju Prasad and Bhujbal, respondents Nos. 1 and 2 had filed a suit claiming to be Sirdars of plot No. 211/1 in village Ram Nagar and seeking ejectment of the defendant-appellant Narain das as a trespasser. Narain Das claimed to have acquired Sirdari rights in the land on the basis of his occupation for the last fifteen years. He also alleged that plot No. 211 had a total area of 3.18 acres and the land in suit was not identifiable on the spot. The courts below, however, held that the plaintiff-respondents were the Sirdars of the land and the defendant-appellant was only a trespasser and that the land in suit was identifiable on the spot. As a result, the suit has been decreed by both the courts below. Narain Das has now come up in second appeal before this Court. 4. The main contention of the learned counsel for the appellant is that the finding of the courts below that the land in dispute is identifiable on the spot is against the evidence on record and is, therefore, perverse. In support of this contention, the learned counsel for the appellant has referred to Savitri Devi v. Achhe Lal, 1969 R.D. 276 in which a learned Bench of the Board of Revenue has held that a decree for ejectment can be refused on the ground that the land in suit is not identifiable on the spot and that an objection regarding the identifiability of land on the spot should be raised and determined during the trial of the suit. The criteria regarding identifiability of land have, however, not been discussed in the above decision. Now, the trial court has fully observed the principle laid down in the above decision and had framed issued No. 5 to the effect 'whether the land in suit is identifiable on the spot or not'. The criteria regarding identifiability of land have, however, not been discussed in the above decision. Now, the trial court has fully observed the principle laid down in the above decision and had framed issued No. 5 to the effect 'whether the land in suit is identifiable on the spot or not'. The trial court has recorded the finding that the land in suit was identifiable on the spot. I may observe that the finding of the trial court is a sound one. The criteria for identifiable of land may be summed up as - (1) a separate plot number or sub-division number being assigned to the land in question, (2) its exact area being specified, (3) its precise boundaries being indicated, and (4) its location shown in the village map. The general principle of course is that all revenue paying land it identifiable. Now, in the present case, we find that in the Khasra plot No. 211/1 in village Ram Nagar is shown as a distinct plot with a total area of 1.59 acres of which 0.59 acre is shown in the cultivation of Narain Das. In the Khasra of 1375 and 1376 Faslis plot No. 211/1 has been specifically subdivided into two portions, plot No. 211/1 with an area of 0.59 acre in the cultivatory possession of Tulsi. This portion with an area of 0.59 acre has been further given a specific number 4/137 in the Khatauni. Thus, according to the Khasra and the Khatauni the plot in suit is identifiable on the spot, and the courts below have not erred in giving the finding to this effect. It is true that the Lekhpal has in his oral statement stated that he cannot tell on which side is plot No. 211/1 with the area of 59 acre, but it has to be remembered that the Lekhpal has to deal with thousands of plots and it is not always possible for him to identify a plot by memory without going to the spot. But, this does not mean that he cannot identify the plot on the spot on the basis of records. It may be remembered that what is known as Purtal is only done on the spot and cannot be done by the Lekhpal or by any other revenue authority while sitting in office or in Court. But, this does not mean that he cannot identify the plot on the spot on the basis of records. It may be remembered that what is known as Purtal is only done on the spot and cannot be done by the Lekhpal or by any other revenue authority while sitting in office or in Court. Thus, the statement of the Lekhpal neither proves nor it can be taken to mean that the land in dispute is not identifiable on the spot. 5. The next contention of the learned counsel for the appellant is that from the evidence on record it is fully proved that the appellant has prescribed rights under Section 210, U.P. Zamindari Abolition and Land Reforms Act and, therefore, the suit was not maintainable. Now, both the courts below have discussed at great length the evidence on this point. For the first time, the appellant is recorded as Kabiz over the land in dispute in red ink in the remarks column of Khasra of 1371 Fasli. The lower appellate court has correctly observed that no date, no diary number and no serial number of P.A. 10 has been recorded and as such the entry is against rules. Thereafter the name of the appellant has been recorded in column 5 of the Khasra in 1372F, 1373F, 1374F, 1375F and 1376F. The learned counsel for the respondents has invited my attention to Paras A-80, A-81, A-82 and 102-C of the Land Rerecords Manual, and the decision in Tiryan v. Bhagwat Prasad, 1974 R.D. 268 and Pahalwan Singh v. Dy. Director Consolidation, 1975 R.D. 370. In the latter, Mr. Prem Prakash J., has observed as follows: "Para A-81 provides that after each Kharif and Rabi Partal of the village the Lekhpal shall prepare a list and from that list prepare extracts which would be issued to the person or persons recorded in columns 3, 4, and 5 of the Khasra. The Supervisor Qanungo shall deal with the list as provided in sub-para (iv) of Para 423. He shall ensure that extracts have been issued in all the cases, and signatures of the recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. The Supervisor Qanungo shall deal with the list as provided in sub-para (iv) of Para 423. He shall ensure that extracts have been issued in all the cases, and signatures of the recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. A copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasra concerned and filed with the Registrar Qanungo alongwith it on or before July 31 of the following year. The Lekhpal is also required to sent extracts from columns 1 to 7 of Form PA-11-A to the Chairman, Land Management Committee. Para 102-C states that if the Lekhpal fails to comply with any of the provisions contained in paras A-90 and A-81, the entries in the remarks column will not be deemed to have been made in the discharge of the official duty. It would thus appear that whenever there is a change in possession, the list of changes in entries prepared by the Lekhpal in para A-80 is not only to be sent to the Chairman of the Land Management Committee and the Supervisor Qanungo, but he has also to issue extracts to the persons affected therefrom. Since this has not been done in the present case, we cannot attach any evidentiary value to the entries contained in the Khasra from 1369 to 1373 Fasli. It would be significant to note that the Khasra columns are conspicuously blank as to show that the extract was issued to the main tenure-holder. It even does not give the date of the Partal or the date of the order of the Supervisor Qanungo. That being so, the finding of the learned Deputy Director based on the entries contained in the Khasra suffers from a legal infirmity and it, therefore, deserves to be quashed." 6. I am wholeheartedly in agreement with the above observations. The lower appellate court has rightly held that the entry in the remarks column of the Khasra of 1371 Fasli was against rules and could no be accepted on its face value. Apart from this, the trial court has held that even if the appellant come in possession of the disputed plot in 1371 Fasli, the present suit was filed in 1376 Fasli and was thus within time. Apart from this, the trial court has held that even if the appellant come in possession of the disputed plot in 1371 Fasli, the present suit was filed in 1376 Fasli and was thus within time. The appellant did not acquire Sirdari rights over the disputed plot on the basis of cultivatory possession beyond the period of prescription, and thus he was rightly held to be a trespasser liable to be ejected. 7. Another contention of the learned counsel for the appellant is that the findings of the courts below are not based on correct appreciation of the record but on surmises and wrong presumptions. This contention has no force at all. All the oral and documentary evidence have been judicially considered by the courts below and their findings are sound in law. 8. I find no force in this second appeal and hereby dismiss it.